Pages

Wednesday, March 26, 2008

Organic Jurisprudence

Guess the speaker:
A philosophy that is imposed from without instead of arising organically from day-to-day engagement with the law isn't worth having. Such a philosophy runs the risk of becoming an ideology, and I'd spent much of my adult life shying away from abstract ideological theories that served only to obscure the reality of life as it's lived.

It's Justice Clarance Thomas, in his autobiography, My Grandfather's Son (p. 238).

It raised my eyebrow 1) because I agree with it, which is a rarity with myself and Justice Thomas, and, more importantly 2) because it really runs counter to how I think Justice Thomas is perceived in the public eye. Perhaps more than any other Justice on the Court, Thomas is seen as the one whose legal writings are the most ideological, the most divorced from arguing about practical impact or contemporary import, in favor of a very tight allegiance to originalism.

I picked up the quote from a short, accessible review of Thomas' book in the Harvard Law Review. In the review, the anonymous author argues that Thomas' jurisprudence on race, where he tends to break from strict originalism, is reflective of this personal experience. Having experienced the brunt of racist America throughout his public life, Thomas cannot help but utilize that in informing his judicial opinions (even though his prescriptions differ drastically from most other Blacks in similar positions). Elsewhere, where this lived experience is not present (such as on abortion), he feels more comfortable retreating to the theoretical. Together, Thomas' judicial inconsistency is not resolved, but it does make more sense.

No comments:

Post a Comment